Guest Editorial
Miranda
challenged in federal criminal cases
The U.S. Court of Appeals for the Fourth Circuit recently
held that 18 USCS section 3501 - and not Miranda -
governs the admissibility of confessions in federal court. The
decision has been appealed to the U.S. Supreme Court, and if
it is sustained, the protection the Miranda warning has provided
for more than 30 years, particularly to the poor and uneducated,
will be drastically reduced.
By Robert W. Landry
![Miranda](/SiteCollectionImages/WisconsinLawyer/1999/05/miranda.jpg)
On Feb. 8, 1999, the U.S. Court of Appeals for the Fourth
Circuit, by a vote of two judges to one, ruled that the 33-year-old
Miranda
case was passé and its famous rubric no longer was required
to admit in evidence a defendant's confession in a federal
criminal case. This decision has dubious precedential merit,
but if it is sustained on appeal to the U.S. Supreme Court, the
protection the Miranda warning has provided for more than
three decades, particularly to the poor and uneducated, will
be drastically reduced. In addition, there would be a return
to the free-for-all courtroom battles so common in pre-Miranda
trials regarding due process, Fifth Amendment rights, and equal
protection in confession contests.
The Virginia appeals court said, "[W]e hold that Congress,
pursuant to the power to establish rules of evidence and procedure
in the federal courts, acted well within its authority in enacting
18
USCS sec. 3501. As a consequence, sec. 3501 rather than Miranda,
governs the admissibility of confessions in federal court."1
Dickerson was charged with conspiracy, four counts of bank
robbery, and three counts of using a firearm in relation to a
crime of violence. Dickerson filed motions in the trial court
to suppress certain statements, which were granted based on Miranda.
The trial court held that the statements could not be used in
the government's case in chief because the Miranda
warning was not timely given but ruled that they could be used
for impeachment purposes, on the grounds that Dickerson had been
accorded due process in the course of his interrogation by law
enforcement officers.
After the government's motion to reconsider the admissibility
of Dickerson's confession was denied by the trial court,
the government appealed, arguing before the Federal Court of
Appeals that the trial court abused its discretion. The government
offered to prove that Dickerson received a Miranda warning
prior to giving the statements in the form of written documents
signed by Dickerson acknowledging that he was timely warned.
Because the government failed to offer this evidence when the
motion to suppress was first heard, the trial court refused to
change its original order to suppress. 18
USCS section 3501 was not presented or argued.
The government appealed the order denying the motion to reconsider.
The court of appeals reversed the trial court remanding the case
with instructions to admit the confession. It said the confession
was admissible under section 3501, which replaced Miranda.
Precedential effect
On appeal, neither the government nor Dickerson relied upon
section 3501. It was not briefed by them nor was it argued. An
amicus brief was filed by the Washington
Legal Foundation: Safe Streets Coalition arguing that section
3501 replaced Miranda. A majority of the court agreed.
It remanded the case to the trial court with instructions to
allow the disputed statements of Dickerson in evidence.
In his dissent, Circuit Judge Michael said, "We perform
our role as neutral abettors best when we let the parties raise
the issues and both sides brief and argue them fully." And,
"It is sound judicial practice for us to avoid issues not
raised by the parties." In further support of his dissent
he cites Davis v. United States: "This is not the
first case in which the United States had declined to invoke
sec. 3501 before us - nor even the first case in which the
failure has been called to our attention."2
It is unusual for a case to be decided on a theory of law
that is not argued by the parties. The strength of the American
justice system depends to a large degree on its adversarial nature
where disputes are resolved by an intellectual battle between
conflicting points of view. Arguments on one side are balanced
with arguments on the other with a reasonable expectation that
the court will then be able to make a well-considered decision.
This was not done in the Dickerson appeal. Neither side presented
briefs or argument on one side or the other. On such an important
issue as discarding Miranda, it is difficult to justify
the appeal court's impetuosity. It puts the precedential
effect of the decision in peril.
The Miranda decision
On June 13, 1966, the U.S. Supreme Court handed down the momentous
case of Miranda
v. Arizona.3 Some predicted terrible
and disastrous consequences, and a collapse of our criminal justice
system. Others cautiously hoped that it would produce a major
improvement by setting a yardstick for determining due process
and voluntariness when judging admissibility of confessions.
After 33 years of use throughout the United States the debate
continues, and each person is free to judge the historic consequences.
Chief Justice Earl Warren wrote the majority opinion in Miranda.
He said, "As for the procedural safeguards to be employed,
unless other fully effective means are devised to inform accused
persons of their right of silence and to assure a continuous
opportunity to exercise it, the following measures are required.
Prior to any questioning, the person must be warned that he has
a right to remain silent, that any statement he does make may
be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The defendant
may waive effectuation of these rights, provided the waiver is
made voluntarily, knowingly and intelligently."
The privilege against self-incrimination, an essential mainstay
of the American adversary system, has its constitutional foundation
in the respect a government, state or federal, must accord to
the dignity and integrity of its citizens. The poor, the uneducated,
the inexperienced, and minorities are particularly vulnerable
to interrogation tactics of law enforcement officers. It may
not be presumed that they know their rights, nor is circumstantial
evidence sufficient to constitute a waiver of their rights. They
are easier targets to extract confessions from than the rich,
intelligent, experienced, and powerful. Some will argue that
that is okay. The Supreme Court did not think so, and prescribed
the warning that we now take for granted. The warning, of course,
does not make a confession admissible automatically. The defendant
must freely, voluntarily, and intelligently waive his or her
right to remain silent. That subjective test is made after there
is sufficient evidence that the warning was properly given. With
a few exceptions, the warning requirement works well, and the
prediction that confessions would dry up as a consequence has
not happened.
Effect of Miranda at trial
In spite of the warning given to an accused required under
Miranda, confessions continue to be used in the prosecution
of criminal cases. Surprisingly, the number of confessions has
not perceptibly changed, but the ease with which the issues pertaining
to them has. A judicial hearing out of the presence of the jury
is conducted to determine whether or not the confession may be
admitted in evidence. If it is allowed in evidence, the case
before the jury proceeds including testimony surrounding the
confession. The defendant may challenge the weight to be given
to the confession - as is the case with all evidence. However,
the trial pattern is completely different from pre-Miranda
trials.
In pre-Miranda trials the issue of voluntariness of
the confession frequently became the main issue in the case.
The government was placed on the defensive, and the accusatory
claims of the defendant about the misconduct of the officers
became more important than the charges against the accused. Even
when there was little or no defense offered, the trial would
be extended because the defendant would raise the specter of
a coerced confession and change the focus of the trial to misconduct
on the part of law enforcement - sometimes with good reason.
Under Miranda, those issues are decided in a motion
before the court on whether the warning was properly and timely
given and whether there was a free and intelligent waiver of
the defendant's rights. This explicit standard gives notice
to law enforcement exactly what it has to do to meet constitutional
requirements. Prior to Miranda even judges were in doubt
about those requirements. So, for the first time in American
judicial history, a uniform standard was established on the admissibility
of confessions. More uniform application of the law (equal protection),
more orderly and efficient administration of justice, and a better
focus on the substantive issues at trial are all benefits that
the court system has enjoyed because of Miranda, without
compromising either the rights of the accused or the best interests
of the public.
Conclusion
In conclusion, I believe that Miranda is good law for
the following reasons:
- It accomplishes the purposes for which it was intended -
to protect the individual against the powers of the state in
accordance with the U.S. Constitution;
- It is accepted by sheriffs and police as a workable and reasonable
guideline that does not compromise the effectiveness of law enforcement;
- Criminal trials are conducted with greater integrity and
efficiency due to the sanitizing effect of Miranda; and
- The Dickerson case fails to weigh in as reliable precedentiaal
authority for substituting 18 USCS section 3501 (1998) for Miranda
v. Arizona.
The fate of this case will be exciting to follow because it
may forecast the posture of the U.S. Supreme Court relative to
other Warren Court decisions. If review is accepted and the decision
is affirmed, its effect may be postponed because it is the policy
of the Department of Justice not to substitute the federal statute
for Miranda and it is unlikely that Attorney General Janet
Reno will change that policy in spite of affirmation.
It is ominous that a high federal court would take an uncharacteristic
prosecutorial role in an opinion that undermines a long-standing
constitutional protection in the guise of enlightened public
interest and scholarship. If decisions such as this go unnoticed,
no one can predict what mischief they may cause. Vigilance and
assertiveness are essential to protect the legal system from
erosion whether by judges with personal agendas or by persons
with special interests.
Endnotes
1 United
States v. Dickerson, U.S. Court of Appeals for the Fourth
District, No. 97-4750 (1999).
2 Davis
v. United States, 512 U.S. 452 (1994) at 463.
3 Miranda
v. Arizona, 384 U.S. 436 (1966).
Robert W. Landry, U.W. 1949, is a retired
Wisconsin circuit court judge, having served on the trial bench
in Milwaukee for 40 years. He participated in the transition
from pre- to post-Miranda.
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